Mortgage foreclosure: the Registry must verify that the third-party possessor was sued

Key data

If your entity has adjudicated a property in mortgage foreclosure and there is a third party who acquired it before the charge certificate was issued, that registration can be rejected at the Registry. The Resolution of July 7, 2026 from the General Directorate of Legal Security and Public Faith confirms the refusal of the accidental property registrar of Murcia no. 2 to register an adjudication decree, precisely for this reason.

The resolution does not create a new rule: it reinforces the application of article 132.1 of the Mortgage Law, which requires the registrar to verify that all registered third-party possessors have been parties to the proceedings. What changes in practice is the forcefulness with which this control is applied, and the consequences for those who do not take it into account.

What does this regulation establish?

The resolution confirms two defects that prevent registration of the adjudication decree:

• Main defect: The company that acquired the mortgaged property before the charge certificate was issued was not properly sued or required to pay. The failed notification attempt does not constitute a valid requirement if it is not shown that all procedural requirements of article 161.2 of the Civil Procedure Law were met.
• Additional defect: Lack of declaration regarding the rental status of the property and the situation of contaminated soil.

Article 132.1 of the Mortgage Law imposes on the registrar the obligation to verify that the registered third-party possessor has been effectively a party to the foreclosure proceedings. It is not enough that the creditor attempted to notify them: it must be proven that all procedural requirements were met for that requirement to be valid.

Economic and operational impact

The impact is not theoretical. A denied registration means that the adjudicatee cannot legally dispose of the property: cannot sell it, mortgage it or prove their ownership to third parties until the defect is remedied.

The most relevant operational consequences are:

• Paralysis of the asset recovery process for the creditor financial entity.
• Need to reverse the judicial proceedings to remedy the lack of proper lawsuit or requirement to the third-party possessor, with the procedural and time costs that this entails.
• Risk of nullity of proceedings if the defect cannot be remedied in the registry phase and must be resolved in court.
• Blocking of sales or refinancing operations on the adjudicated property until registration is completed.

For adjudicatees in auctions—investment funds, servicers, individuals—the risk is acquiring an asset that they cannot register in their name, with the financial and opportunity costs that this entails.

Who does it affect?

• Financial entities that foreclose mortgages on properties with registered third-party possessors.
• Adjudicatees in mortgage auctions (funds, servicers, individuals) who have acquired properties in proceedings where there may be third-party possessors.
• Third-party possessors of mortgaged properties who acquired before the charge certificate was issued and who, thanks to this resolution, see their registry protection reinforced.
• Lawyers and court officers who manage mortgage foreclosure proceedings and must verify the registry status of the property before initiating or during the proceedings.
• Property registrars, who are obligated to actively verify this matter in every mortgage adjudication.

Practical example

A bank initiates a mortgage foreclosure on an industrial warehouse in Murcia. During the proceedings, the bank detects that a company acquired the warehouse before the charge certificate was issued. The bank attempts to notify that company at its registered address, but the notification fails to be properly completed because the address is outdated.

The bank continues the proceedings, obtains the adjudication decree and presents it to the Property Registry of Murcia no. 2 for registration. The registrar denies the registration: the failed notification attempt does not meet the requirements of article 161.2 CPL, so it cannot be considered that the company was validly required to pay or sued.

Result: the adjudicatee cannot register the warehouse in their name. The bank must reverse the proceedings, properly locate the company and ensure that the payment requirement is made with all procedural safeguards. Meanwhile, the asset remains blocked.

What should companies do now?

1. Audit ongoing mortgage foreclosure proceedings: verify if there is any registered third-party possessor who acquired the property before the charge certificate was issued and who has not been formally sued and required to pay.
2. Review the validity of payment requirements made: verify that each requirement meets all requirements of article 161.2 CPL, not just that notification was attempted. A failed attempt is not sufficient.
3. Before presenting the adjudication decree to the Registry: ensure that the documentation includes the declaration regarding the rental status of the property and contaminated soil, as their absence is an additional defect that also prevents registration.
4. Coordinate with the lawyers handling the proceedings: establish a registry verification protocol prior to initiating foreclosure to identify registered third-party possessors and ensure their proper integration into the proceedings.
5. For auction adjudicatees: require the selling financial entity to prove that all third-party possessors were properly sued and required to pay before formalizing the asset acquisition.

Official source

Consult complete regulation at official source

Notice: This article is for informational purposes only and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2026-22047